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Breaking Barriers in Condominium Communities

As published in the Spring 2010 edition of CM Magazine. Co-authored.

This Article explores the impact of DiSalvo v. Halton Condominium Corp. No. 186 on a condominium corporation’s duty to accommodate a unit owner with a disability-related need. This landmark decision from the Human Rights Tribunal of Ontario (the “Tribunal”) centred on the issue of who should bear the cost of an accommodation. As well, this article suggests policies that can assist condominium corporations in meeting their obligations under both the Human Rights Code of Ontario (the “Code”) and the Condominium Act, 1998 (the “Act”).

By way of background, the condominium in question was comprised of a number of townhouse units. There was no dispute between the parties that the unit owner, who had a physical disability, required accommodation. In order to enter and exit through the front door of his home, the unit owner requested that certain changes be made to the walkway and entranceway to his unit. The walkway and entranceway were common elements, and were controlled by the condominium corporation.

Upon receiving the unit owner’s request, the board of directors insisted that the unit owner pay for the costs of the changes, including the administrative and legal costs. The unit owner refused to bear the costs and the parties became entrenched in their respective positions. The board of directors eventually assumed a “stonewall” approach to the accommodation request and refused to discuss the matter until the unit owner provided proof that it was the condominium corporation’s responsibility to pay for the changes.

Over the course of a year, the dispute proceeded to the Tribunal, which ultimately held that the condominium corporation had failed to meet both its procedural and substantive obligations under the Code. The Tribunal held that the condominium corporation was responsible for the common elements and that the unit owner should not have to bear the costs of the changes.

In short, the adjudicator held, “that the [condominium corporation’s] duty to accommodate includes an obligation to assume the cost of providing accommodation measures.” In these circumstances, the only available defence left for the condominium corporation was to establish that the cost of the accommodation would have caused undue hardship to the other unit owners. On the facts of the case, it was clear that there was no such hardship.

The DiSalvo case is significant, in part, because it provides a new twist on the issue of who should bear the costs of changes to common elements. In particular, DiSalvo can be contrasted with the 2009 case of Mc-Millan v. Bruce Condominium Corp. No. 6, where the owner of a detached house condominium unit, and not the condominium corporation, was responsible for the cost of installing handrails on common element steps, which led only to the owner’s unit. The distinction between these two cases goes to show that each case will be decided on its own facts.

Despite the interest in the substantive result, the DiSalvo case may be more important for its comments regarding the procedural duty to accommodate. In this case, in addition to requiring the condominium the adjudicator awarded $12,000 in monetary damages for “injury to dignity, feelings and self-respect” as a result of the condominium corporation’s failure to cooperate with the unit owner in question.

The procedural duty to accommodate, as described in DiSalvo, requires that the condominium corporation:

make appropriate inquiries into the nature of the resident’s disability-related needs; and,

give thought and consideration to the issue of accommodation, including what, if any, steps could be taken to provide accommodation.

This process, if performed correctly, leads to a discussion with the unit owner about the most effective accommodation for that person’s disability-related needs. A board of directors has a duty to be active in this process, rather than passively managing the resident’s request, or, worse, obstructing the request for accommodation.

In the DiSalvo case, the board of directors created unacceptable preconditions to discussions with the unit owner by making him either:

agree to bear the cost; or alternatively,

provide the board with an independent legal opinion that the Act did not apply to the accommodation.

The adjudicator held that the board of directors, in taking that position, breached its procedural duty, and therefore its position in this respect was wrong at law. Boards of directors and property managers should pay particular attention to the following passage from DiSalvo:

I am troubled by the process adopted by the [condominium corporation] in these circumstances. Its unwillingness to engage in substantive discussions with the [unit owner] for a full year is, on its own, a sufficient basis to find a failure of the procedural duty to accommodate. Beyond this, the [condominium corporation] attempted to shift the principal burden of the inquiry into accommodation to the [unit owner]. Rather than take steps to determine the extent of its obligations, it imposed those steps on the [unit owner] as a precondition to having substantive discussions with him.

So what can a condominium corporation do to meet its procedural duty to accommodate? Here are six ideas:

1. Have a Human Rights Policy

Boards and property managers should turn their minds to whether their condominium corporation requires a human rights policy and complaints procedure. Such a policy should include an accessibility plan to identify barriers and should be updated with periodic accessibility reviews.

2. Renovate Inclusively

If the condominium corporation is considering renovations, it should ensure that the plans are designed inclusively of unit owners’ disability-related needs and so as to not create new barriers. Renovations provide a low-cost opportunity to improve accessibility and prevent the need for more costly after-the fact accommodation. For example, if the condominium corporation is planning a major renovation to its lobby, consideration should be given to installing automatic doors to the lobby entrances as well as other inclusive features.

3. Make Inquiries

The board of directors has a positive obligation to meet with a resident who has a disability-related need and to determine the nature of that need. There should be no preconditions to meeting with a resident where the issue to be discussed relates to a disability.

4. Investigate Possible Accommodations

Once the board has a thorough understanding of the resident’s needs, it must turn its attention toward what steps can be taken to provide accommodation. This process should include as much input from the resident as possible. The board should compare all of its options for accommodation, including estimates of cost and effectiveness.

5. Create a Record

Directors and property managers should regularly and accurately document any steps that are taken to accommodate the needs of residents, including the content of conversations and meetings. A condominium corporation’s record of its attempts to accommodate a resident will be necessary if the parties are not able to agree on the accommodation and the matter proceeds to a hearing before the Tribunal.

6. Contact Legal Counsel Early

On Directors and property managers should notify legal counsel as soon as they become aware of a unit owner’s disability-related needs. Depending on the individual’s needs and the type of accommodation, there are a number of legal requirements under the Code and the Act that should be reviewed by counsel.

In DiSalvo, the condominium corporation did not contact its solicitors until after the unit owner brought an application to the Tribunal. By that time, it was far too late, as the board’s conduct in the case had already been established. If the board had contacted counsel from the start, the case may have been resolved without litigation. Even if litigation had ultimately occurred, the facts leading up to it could have been vastly different, and the adjudicator’s ruling could have differed accordingly.

If an application has been filed with the Tribunal and the condominium corporation has not yet contacted legal counsel, it is absolutely necessary that the condominium corporation seek legal advice on how to proceed on a go-forward basis.

Conclusion

The DiSalvo case should be regarded as a cautionary tale with respect to a condominium corporation’s duty to accommodate. Where a resident has a disability-related need requiring accommodation, the property manager and the board of directors must work with the resident to create an individualized plan that addresses the need. Crucially, the property manager and the board must respect the resident’s dignity by co-operating and by taking active steps towards implementing a reasonable accommodation plan. Boards would be wise to notify legal counsel as soon as they are aware of a resident’s disability-related need, and at the very latest, as soon as the board is aware of a potential dispute between the condominium corporation and the resident.